it was neld by the judges, that the prisoner was properly convicted, the finding of the grand jury on the bill, imputing the principal felony to H. M., being no objection to the other indictment. R. v. Bush, Russ. & Ry. 372. See also R. v. Caspar, 2 Moo. C. C. 101.1

Where on an indictment upon the Black Act, for maliciously shooting A. Sandon, in the dwelling-house of James Brewer and John Sandy, it appearing in evidence that it was in the dwelling-house of John Brewer and James Sandy, the court said, that as the prosecutor had thought proper to state the names of the owners of the house where the fact was charged to have been committed, it was a fatal variance. The statute says, "Who shall maliciously shoot at any person, in any dwelling-house or other place," and the prosecutor having averred that it was in the house of James Brewer and John Sandy, was bound to prove it as it was laid. R. v. Durore, 1 Leach, 351; 1 East, P. C. 45. So where the indictment was for breaking, etc., the house of J. Davis, with intent to steal the goods of J. Wakelin, in the said house being, and there was no such person in the house, but J. W. was put by mistake for J. D., the prisoner was held entitled to an acquittal, and it was ruled that the words "J. W." could not be rejected as surplusage, since they were sensible and material, it being *material *90] to lay truly the property in the goods, without such words the description of the offence being incomplete. R. v. Jenks, 2 East, P. C. 514.

Before the extensive powers of amendment which now exist were conferred, a variance in names as laid and proved was got over by the rule of idem sonans, as it was called. Thus where the name in the indictment was John Whyneard, and it appeared that the real name was Winyard, but that it was pronounced Winnyard, the variance was held to be immaterial. R. v. Foster, Russ. & Ry. 412. So Segrave for Seagrave, Williams v. Ogle, 2 Str. 889. Benedetto for Beniditto, Abithol v. Beniditto, 2 Taunt. 401. But it would scarcely ever now be necessary to resort to this rule.

and

It has always been usual to treat the addition to a name as surplusage. Thus the prisoner was indicted (before the 39 & 40 Geo. 3, c. 67, the Act of Union) for stealing the goods of James Hamilton, Esq., commonly called Earl of Clanbrassil, in the kingdom of Ireland; it appeared that he was an Irish peer. The judges were of opinion that James Hamilion, Esq.," was a sufficient description of the person and degree of the prosecutor, and that the subsequent words, "commonly called Earl of Clanbrassil, in the kingdom of Ireland," might be rejected as surplusage. But they conceived that the more correct and perfect mode of describing the person of the prosecutor

1 Name unknown. Commonwealth v. Sherman, 13 Allen, 248. Name of person upon whom crime committed unknown to the grand jury, is sufficient, though it might with reasonable diligence have been ascertained. Commonwealth v. Stodard, 9 Allen, 280. Names of persons unknown not sufficient if they were in fact known, or could have been ascertained by the use of due diligence. Check v. State, 38 Ala. 227. If the name of a person on whom a crime has been committed is unknown to the informing officers it may be averred to be unknown, and it is not necessary to prove it. State v. Wilson, 30 Conn. 500. S.

would have been "James Hamilton, Esq., Earl of Clanbrassil, in the kingdom of Ireland," and as that more perfect description appeared upon the face of the indictment, by considering the intervening words, "commonly called," as surplusage, they thought that the indictment was good. R. v. Graham, 2 Leach, 547; 1 Stark. C. P. 206. So where the prisoner was indicted for stealing the goods of A. W. Gother, Esq., Burrough, J., held that the addition of esquire to the name of the person in whom the property is laid, is mere surplusage and immaterial. R. v. Ogilvie, 2 C. & P. 230, 12 E. C. L.1

Where a person has a name of dignity, that is the proper name by which to describe him, for it is the name itself and not an addition merely. R. v. Graham, supra; 3 Russ. Cri. 393, 5th ed. (n). It is usual to add the Christian names to the name of dignity, but Parke, B., said in R. v. Frost, 1 Dears. C. C. 474; 24 L. J., M. C. 61, that the name of dignity alone was sufficient.

Where the only evidence of the Christian name of the prosecutor was that of a witness who had seen him sign his name, it was held to be sufficient. R. v. Toole, Dears. & B. C. C. 194.

Here again the power of amendment would properly be freely exercised.

Averments descriptive of time. As has been said, in general, no time need be alleged in the indictment, or if alleged, need not be proved. But if it be of the essence of the offence, as in burglary, or the non-surrender of a bankrupt at the time appointed, then it must, subject to the power of amendment, be strictly proved as laid. R. v. Browne, M. & M. 315.

Averments descriptive of place. In some particular cases it is necessary to prove the parish or place named in the indictment.3

1 But in Rhode Island a plea in abatement, that there is an erroneous addition to the indictment. Thus, Mary Daly, "Spinster," is good, and the indictment must be quashed. State v. Daly, 14 R. I. 510.

2 An indictment which does not allege the time or place of the offence charged is fatally defective. State v. Slack, 30 Tex. 354; State v. Johnson, 32 Tex. 96. Time not material if previous to indictment. McBryde v. State, 34 Ga. 202. [City of Emporia v. Volmer, 12 Kan. 622. But where the time proved varies from that laid, it must not be so remote as to let the statute of limitations intervene. State v. Munson, 40 Conn. 475.] An indictment charging the offence to have been committed at a date subsequent to the finding of it is bad. State v. Noland, 29 Ind. 212. Allegation of time of an offence continuing from day to day. Commonwealth v. Fratis, 82 Mass. 236. See also State v. G. S., 1 Tyl. 295; State v. Haney, 1 Hawks. 460; Jacobs v. Commonwealth, 5 S. & R. 316; United States v. Stevens, 4 Wash. C. C. 547; Commonwealth v. Harrington, 3 Pick. 26. [“At or prior to" is a sufficient allegation as to time when the act is continuous. People v. Buddensieck, 4 N. Y. Crim. Rep. 230.] But in perjury charged to have been committed in the Circuit Court, held on the 19th of May, and the record shows the court to have been held on the 20th of May, the variance is fatal. United States v. McNeal, 1 Gall. 387. S. [Compare Hoerr v. State, 4 Tex. App. 75; Collins v. State, 5 Tex. App. 37; Brewer v. State, 5 Tex. App. 248; Williamson v. State, 5 Tex. App. 485; Hawthorne v. State, 6 Tex. App. 562.]

3 As in an indictment for keeping a disorderly house. McDonald's Case, 3 Rog. Rec. 128. So in burglary, Carney's Case, Id. 44. Quære, in bigamy, where the first

Thus as in an indictment against a parish for not repairing a highway, the situation of the highway within the parish is a material *91] *averment, see 2 Stark. C. P. 693 (n), 3 E. C. L., it must be proved as laid. So, if the statute upon which the indictment is framed, gives the penalty to the poor of the parish in which the offence was committed, the offence must be proved to have been committed in the parish stated in the indictment. 3 Russ. Cri. 403, 5th ed.; R. v. Glossop, 4 B. & A. 616, 6 E. C. L.

So where the offence is in its nature local, the name of the parish, or place must be correctly stated in the indictment, and proved as laid; as, for instance, on an indictment for stealing in the dwelling-house, etc., for burglary, for forcible entry, or the like.

Where an injury is partly local and partly transitory, and a precise local description is given, the local description becomes descriptive of the transitory injury, and should be proved as laid. 1 Stark. Ev. 466, 3rd ed., citing R. v. Cranage 3 Russ. Cri. 404, 5th ed.; 1 Salk. 385. So where the name of a place is mentioned, not as a matter of venue, but of local description, it should be proved as laid, although it need not have been stated. Thus where an indictment (under the repealed stat. 57 Geo. 3, c. 90) charged the defendant with being found armed, with intent to destroy game in a certain wood called the Old Walk, in the occupation of J. J., and it appeared in evidence that the wood had always been called the Long Walk, and never the Old Walk, the judges held the variance fatal. R. v. Owen, 1 Moo. C. C. 118.

Of course many such variances would now be got over by an exercise of the powers of amendment.

Averments descriptive of value. There are many cases in which the allegation of value is material, either because the value is of the essence of the offence, as in an indictment against a bankrupt for concealing or embezzling part of his estate to the value of 101.; or as enhancing the punishment as in an indictment under the 24 & 25 Vict. c. 96, s. 60, for stealing in a dwelling-house, to the amount of 51. But any error in this respect can generally be got over either by amendment, or by the rule of divisible averments; supra, p. 83.1

marriage alleged to be in the State is in fact out of it. Ewen's Case, 6 Id. 65. S. [See People v. Calder, 30 Mich. 85.]

Where the evidence does not show in what county or State the alleged offence was committed, a judgment of conviction cannot be sustained. Stazey v. State, 58 Ind. 514. If the evidence fails to prove the venue as laid, e. g., the county in which the crime is said to have been committed, there is ground for reversal. People v. Tarpey, 59 Cal. 371; State v. Inman, 76 Mo. 548; State v. McGinnis, 74 Mo. 245. It is not essential that a venue be established by positive testimony. It is sufficient if from the evidence the jury may reasonably conclude that the offence was committed in the county alleged. Hoffman v. State, 12 Tex. App. 406. But the venue of the crime must be established beyond a reasonable doubt. Gosha v. State, 56 Ga. 36. Whether a particular locality is or is not within a particular county is not a fact judicially known to the courts. Boston v. State, 5 Tex. App. 383.

1 Inasmuch as a note given to a public officer to influence his official action is void as contrary to public policy, and is without consideration, it follows that an indictment against an officer, charging him with having received a promissory note for the

Averments descriptive of the mode of committing the offence. The description of the mode of committing the offence must be proved as laid, if not amended. But the substance only of such averments need be proved. 1 East, P. C. 341; 2 Hale, P. C. 185. Thus where the prisoner was indicted for administering to one H. M. G., a single woman, divers large quantities of the decoction of a certain drug called savin, with intent to procure the miscarriage of the said H. M. G.; and it appeared that the prisoner had prepared the medicine by pouring boiling water over the leaves of a shrub, a process which the medical witnesses stated was an infusion, and not a decoction, Lawrence, J., overruled an objection taken on this ground. He said that effusion and decoction were ejusdem generis, and that the question was, whether the prisoner administered any matter or thing with intent to procure abortion. R. v. Phillips, 3 Campb. 73, and see post, tits. Malicious Injuries and Murder. Where an indictment charged that A. gave the mortal stroke, and that B. & C. were present, aiding and abetting, if it appeared in evidence that B. was the person who gave the stroke, and that A. & C. were present, aiding and abetting, they may all be found guilty of murder or manslaughter, at common law, as circumstances may vary the case. The identity of *the person supposed to have given the stroke, is but a circum

stance, and in this case a very immaterial one- -the stroke of [*92

one

being, in consideration of law, the stroke of all. The person giving the stroke is no more than the hand or instrument by which the others strike. Foster, 351; 1 Hale, P. C. 437, 463; 2 Iď. 344, 345.

EVIDENCE CONFINED TO THE ISSUE.

We have considered what evidence is necessary; we have now to consider what evidence is admissible as relevant to the issue. Bearing in mind all that has been said as to the nature of the issue or issues raised by an ordinary criminal pleading, it may be laid down as a general rule, that in criminal, as in civil cases, the evidence shall be confined to the point in issue. In criminal proceedings it has been observed (3 Russ. Cri. 368, 5th ed.), that the necessity is stronger, if possible, than in civil cases, of strictly enforcing this rule; for where a prisoner is charged with an offence, it is of the utmost importance to him that the facts laid before the jury should consist exclusively of the transaction which forms the subject of the indictment, and matters relating thereto, which alone he can be expected to come prepared to answer. The importance of keeping evidence within certain prescribed grounds is greater now than before the alterations in criminal pleadings.1

payment of money as a bribe, does not charge the receiving of a thing of value; and it is bad on a motion to quash. State v. Walls, 54 Ind. 561. See, also, O'Brien v. State, 6 Tex. 665; Jackson v. State, 43 Id. 421; State v. Pearce, 14 Fla. 153.

1 The admission of evidence irrelevant to the issue, if prejudicial to the prisoner, is not cured by its being stricken out, where it is likely to influence the jury. People v. Zimmerman, 4 N. Y. Crim. Rep. 272.

Thus as in an indictment against a parish for not repairing a highway, the situation of the highway within the parish is a material *91] *averment, see 2 Stark. C. P. 693 (n), 3 E. C. L., it must be proved as laid. So, if the statute upon which the indictment is framed, gives the penalty to the poor of the parish in which the offence was committed, the offence must be proved to have been committed in the parish stated in the indictment. 3 Russ. Cri. 403, 5th ed.; R. v. Glossop, 4 B. & A. 616, 6 E. C. L.

So where the offence is in its nature local, the name of the parish, or place must be correctly stated in the indictment, and proved as laid; as, for instance, on an indictment for stealing in the dwelling-house, etc., for burglary, for forcible entry, or the like.

Where an injury is partly local and partly transitory, and a precise local description is given, the local description becomes descriptive of the transitory injury, and should be proved as laid. 1 Stark. Ev. 466, 3rd ed., citing R. v. Cranage 3 Russ. Cri. 404, 5th ed.; 1 Salk. 385. So where the name of a place is mentioned, not as a matter of venue, but of local description, it should be proved as laid, although it need not have been stated. Thus where an indictment (under the repealed stat. 57 Geo. 3, c. 90) charged the defendant with being found armed, with intent to destroy game in a certain wood called the Old Walk, in the occupation of J. J., and it appeared in evidence that the wood had always been called the Long Walk, and never the Old Walk, the judges held the variance fatal. R. v. Owen, 1 Moo. C. C. 118.

Öf

course many such variances would now be got over by an exercise of the powers of amendment.

Averments descriptive of value. There are many cases in which the allegation of value is material, either because the value is of the essence of the offence, as in an indictment against a bankrupt for concealing or embezzling part of his estate to the value of 101.; or as enhancing the punishment as in an indictment under the 24 & 25 Vict. c. 96, s. 60, for stealing in a dwelling-house, to the amount of 51. But any error in this respect can generally be got over either by amendment, or by the rule of divisible averments; supra, p. 83.1

marriage alleged to be in the State is in fact out of it. Ewen's Case, 6 Id. 65. S. [See People v. Calder, 30 Mich. 85.]

Where the evidence does not show in what county or State the alleged offence was committed, a judgment of conviction cannot be sustained. Stazey v. State, 58 Ind. 514. If the evidence fails to prove the venue as laid, e. g., the county in which the crime is said to have been committed, there is ground for reversal. People v. Tarpey, 59 Cal. 371; State v. Inman, 76 Mo. 548; State v. McGinnis, 74 Mo. 245. It is not essential that a venue be established by positive testimony. It is sufficient if from the evidence the jury may reasonably conclude that the offence was committed in the county alleged. Hoffman v. State, 12 Tex. App. 406. But the venue of the crime must be established beyond a reasonable doubt. Gosha v. State, 56 Ga. 36. Whether a particular locality is or is not within a particular county is not a fact judicially known to the courts. Boston v. State, 5 Tex. App. 383.

1 Inasmuch as a note given to a public officer to influence his official action is void as contrary to public policy, and is without consideration, it follows that an indictment against an officer, charging him with having received a promissory note for the